DEGeneral Terms and Conditions
Velvety Manufaktur GmbH
(hereinafter referred to as “VELVETY”)
Velvety Manufaktur GmbH, FN 429487z, Commercial Register Court Linz Provincial Court
Address: Lothringenstraße 12, A-4501 Neuhofen an der Krems
Phone: +43 7227 20083
E-Mail: office@velvety.eu
UID number: ATU69367419
Place of jurisdiction: Linz Regional Court
Authority acc. ECG: Linz-Land district administration
Chamber organization: Upper Austrian Chamber of Commerce
I. Validity of the Terms and Conditions
1. These General Terms and Conditions (referred to as GTC) apply to contracts for deliveries, services, and offers that a business enters into with VELVETY.
2. These GTC do not apply to the distribution of goods through the webshop and do not apply to the distribution of goods to consumers. In this regard, reference is made to the GTC for the webshop.
3. VELVETY does not recognize any terms and conditions of the customer that deviate from these GTC unless VELVETY has explicitly agreed to their validity. Acts of performance by VELVETY do not constitute acceptance of contractual terms that deviate from these GTCVELVETY does not recognize any terms and conditions of the customer that deviate from these GTC unless VELVETY has explicitly agreed to their validity. Acts of performance by VELVETY do not constitute acceptance of contractual terms that deviate from these GTC
II Offer, conclusion of contract and content of contract
1. The offers from VELVETY are non-binding unless they are explicitly designated as binding.
2. A contract is legally concluded solely through a written order confirmation from VELVETY. Partial deliveries are permissible.
3. Employees of VELVETY are not authorized to make agreements that deviate from the GTC or list prices. Such agreements require written confirmation from VELVETY.
4. Information in catalogs, brochures, etc., is non-binding and only becomes part of the contract if it is expressly referenced in the order confirmation.
5. The content of the order confirmations must be checked by the recipient, who is obligated to immediately report any deviations from the message they submitted. Otherwise, the transaction will be considered to have been concluded with the content confirmed by VELVETY.
6. VELVETY’s products are natural products that are handmade for the customer. Optical changes, changes in consistency, color or scent deviations, even before the expiration date, are naturally occurring and are not grounds for complaints. All products are unique and may therefore vary in shape, color, scent, and size.
7. In addition, minor or otherwise acceptable changes to the performance or delivery obligation are considered approved in advance by the customer.
8. In particular, deviations from goods that conform to the current version of Council Directive 76/211/EEC of January 20, 1976, on the approximation of the laws of the Member States concerning the filling of certain products by weight or volume in prepackaged form, are considered approved.
9. VELVETY is entitled to make a delivery of up to 10% more or less of the ordered goods, with a corresponding percentage adjustment of the purchase price.
III Prices, shipping costs
1. All price quotes are non-binding and, unless otherwise specified, are in euros and exclude VAT.
2. The statutory VAT will be added to the invoice at the applicable rate. Any additional fees are to be paid by the customer.
3. Regarding shipping costs, refer to Section V.
IV. Terms of payment, interest on arrears, loss of time, prohibition of compensation
1. Invoices from VELVETY are due for payment within 10 days from the date of the invoice, free of expenses and deductions. Transfers are only considered payment once the amount has been credited to VELVETY’s account. The acceptance of bills of exchange or checks is only by prior written agreement and only as a means of payment. Discount interest and all bank charges are solely the responsibility of the customer.
2. In the event of payment default by the customer, VELVETY is entitled to choose either to claim compensation for the actual damage incurred or to demand default interest at the statutory rate. For businesses, this is 9.2% per annum above the base interest rate.
3. VELVETY is also entitled, in the event of the customer’s payment default, to demand compound interest starting from the day the goods are delivered.
4. In the event of payment default, the customer agrees to reimburse VELVETY for any reminder and collection costs incurred, to the extent that they are necessary for appropriate legal action. This includes a flat fee of EUR 40 as compensation for collection costs under § 458 of the Austrian Commercial Code (UGB). The assertion of further rights and claims remains unaffected.
5. In the event of the customer’s delay with any (partial) payment, VELVETY is entitled to demand immediate payment of outstanding but not yet due invoice amounts and/or to require advance payment or security for future deliveries and services.
6. Offsetting with counterclaims by the customer that are disputed by VELVETY and not legally established is excluded, as is the exercise of a right of retention without a legally binding title or based on claims from other legal transactions.
V. Terms of delivery, default of acceptance
1. Unless otherwise agreed, VELVETY sells the goods on an ‘EXW’ (Ex Works) basis according to INCOTERMS® 2020.
2. For deliveries within Austria with an order value of EUR 350.00 or more, and for deliveries to Germany with an order value of EUR 500.00 or more (net per delivery address and delivery date), the delivery will be made ‘CPT’ (Carriage Paid To) according to INCOTERMS® 2020.
3. Unless otherwise agreed in writing, the provision/delivery of the goods will be from the VELVETY facility located at Lothringenstraße 12, 4501 Neuhofen an der Krems. For deliveries, it is VELVETY’s responsibility to select the carrier. The customer is obligated to accept the deliveries and services. Delivery is uninsured.
4. VELVETY is only obligated to perform once the customer has fulfilled all their obligations necessary for delivery (e.g., receipt of the agreed advance payment). VELVETY will make every effort to adhere to delivery deadlines and dates. Unless expressly agreed as binding, these deadlines and dates are non-binding and always refer to the anticipated time of readiness at the factory or handover to the carrier. The customer may only withdraw from the contract due to delivery delays by setting a reasonable – at least 4-week – grace period. The withdrawal must be made by registered letter. The right of withdrawal applies only to the part of the delivery or performance where the delay exists.
5. The delivery deadline is considered met if, by its expiration, the goods are ready for dispatch and this has been communicated to the customer, or if the delivery item has left VELVETY’s facility. Subsequent requests for changes or additions by the customer will extend the delivery time accordingly. The same applies in the event of unforeseen obstacles beyond VELVETY’s control, such as force majeure, pandemics, strikes, lockouts, or delays in the delivery of essential raw materials, materials, or components.
6. In all cases of delayed delivery, the customer’s claims for damages are excluded even after the grace period has expired, except in cases of intent or gross negligence. If a delivery is not possible due to delivery difficulties and/or price increases with the supplier or producer, VELVETY is entitled to withdraw from the contract without any obligation to provide compensation.
7. VELVETY’s liability for delay damages is limited to 0.5% of the value of the delayed delivery, with a maximum of 5% of the value of the part of the delivery that was not delivered on time.
8. Goods that are not accepted by the agreed delivery date will be stored at the customer’s risk and expense for a maximum of 4 weeks. The customer is responsible for the costs of returning the goods to VELVETY, redelivery, and storage fees. At the same time, VELVETY is entitled to either insist on contract fulfillment or, after setting a reasonable grace period, withdraw from the contract and dispose of the goods elsewhere. In the event of disposal, a contractual penalty of 50% of the invoice amount (excluding VAT) is agreed upon.
VI Notice of defects, warranty, compensation, product liability, secondary obligations
1. The customer is obligated to inspect a sample of the goods upon receipt for visible defects, or have it inspected, particularly by unpacking a piece of the goods, subjecting it to visual, olfactory, and tactile examination, and simulating the intended use of the goods (e.g., dissolving in water). Any detectable defects must be reported in writing immediately after this inspection, and no later than within 3 working days, and in any case before reselling the goods. Hidden defects must be reported in writing within 3 working days of discovering the defect. The complaint must be sufficiently justified and supported with evidence to be valid.
2. If a defect complaint is not made or not made in time, the goods are considered approved. In such cases, claims for warranty or damages, including consequential damages, as well as the right to contest based on defects, are excluded.
3. The customer must store VELVETY’s products in a cool, dry place, protected from frost and direct sunlight. The properties and quality of the products are not guaranteed if stored differently.
4. The presumption of defectiveness according to § 924 of the Austrian General Civil Code (ABGB) is excluded.
5. In the case of justified defects, the warranty is limited to repair, replacement, or supplementation of the missing parts. Multiple repairs and replacement deliveries are permitted. Claims for withdrawal or price reduction are excluded. The warranty becomes void if the customer or a third party not authorized by VELVETY has made alterations or repairs to the goods.
6. To carry out warranty services, the customer must deliver the goods to VELVETY at their own expense and risk and collect them from VELVETY.
7. VELVETY is not liable for damages resulting from inappropriate or improper use, natural wear and tear, faulty or negligent handling, or storage.
8. No warranty, guarantee, or liability of any kind is assumed for discounted or batch/lot goods delivered as agreed.
9. Should the order confirmation include a guarantee commitment (which is in any case only a ‘non-genuine guarantee agreement’), it will not cover wear parts or damages caused by inappropriate or improper use, natural wear and tear, or faulty or negligent handling or storage. The guarantee commitment is to be understood as VELVETY being responsible for defects (excluding the aforementioned cases) that occur within the agreed guarantee period after delivery and are claimed within this period.
10. Unless this contradicts mandatory law and unless otherwise stated in these terms, VELVETY is only liable for the compensation of damages that are caused by VELVETY’s gross negligence or intent. However, this limitation of liability does not apply to compensation for personal injury. VELVETY is not liable for indirect damages, lost profits, interest losses, missed savings, consequential and financial damages, and damages arising from third-party claims. In cases of gross negligence, liability is limited to the value of the goods delivered, but not exceeding the amount covered by VELVETY’s insurance. For damages due to delay, refer to Section V.
11. Liability for property and personal damage under the Product Liability Act is excluded. The customer agrees to pass on this exclusion of liability to their own customers.
12. Claims for contesting the contract due to error are excluded, except in cases of deceit, threat, and coercion.
VII Retention of title
1. VELVETY retains ownership of the delivered goods until the full purchase price has been paid. The customer bears the entire risk for the reserved goods, particularly the risk of loss, destruction, or deterioration.
2. In the event of processing or combining the goods with other items, VELVETY’s ownership extends to the new item. The customer is entitled to resell the delivered goods in the course of ordinary business. Until the full purchase price has been paid, the customer assigns all claims and security rights arising from the resale to VELVETY as collateral. The customer is required to record this assignment in their books. In the event of the customer’s payment default, VELVETY is entitled to notify the resellers of the goods, who must be disclosed by the customer, of the assignment and to demand payment directly from them.
3. Any pledge or transfer of the goods delivered under retention of title as collateral for the benefit of third parties is prohibited without VELVETY’s consent. The customer must immediately notify VELVETY of any third-party seizure. Acknowledgment of balance does not affect the retention of title, nor does the acceptance of bills or checks until they are properly and actually redeemed. If VELVETY has to enforce the retention of title and takes back the goods, the credit for the returned goods will be subject to a reduction in price that reflects the storage duration, wear and tear, and other circumstances, but will be at least 30% of the invoice value. The customer is obligated to notify VELVETY before filing for insolvency, so that VELVETY can reclaim the goods delivered under retention of title and still in its ownership.
4. In the event of payment default, VELVETY is entitled to secure the goods, which does not relieve the customer of their obligations under the purchase contract, particularly the obligation to pay. Enforcing the retention of title constitutes a withdrawal from the contract only if expressly declared. In the event of the seizure of goods subject to retention of title, the customer must promptly provide detailed information to VELVETY. Furthermore, any segregation of the goods due to impending insolvency is not permissible while the retention of title is in effect. Goods delivered under retention of title must be properly stored and insured against all foreseeable risks in the ordinary course of business.
VIII. Data protection, change of address and copyright
1. We would like to point out that, when processing personal data, the applicable data protection laws, particularly the General Data Protection Regulation (GDPR) and the (Austrian) Data Protection Act, are always adhered to. Detailed information can be found in our Privacy Policy, which is available at https://www.velvety-cosmetics.com/datenschutz/.
2. All legally binding declarations under these terms and conditions must be made in writing and sent to the last known address of the other contracting party.
3. The customer is obligated to inform VELVETY of any changes to their residential or business address as long as the contract has not been fully performed by both parties. If this notification is not made, declarations shall be considered as received even if they are sent to the last provided address.
4. Formulas or other technical documents, as well as samples, catalogs, brochures, illustrations, and similar materials, remain the intellectual property of VELVETY; the customer does not acquire any form of usage or exploitation rights. The customer is obligated to maintain the confidentiality of the information provided by VELVETY. Details are governed by the confidentiality agreement / Non-Disclosure Agreement between VELVETY and the customer.
IX. Place of fulfillment, contract language, place of jurisdiction, choice of law
1. The place of performance is the location of VELVETY.
2. The language of the contract is German.
3. The competent court for Neuhofen an der Krems is agreed upon as the place of jurisdiction.
4. Austrian law shall apply to this contract, excluding the conflict-of-law rules of international private law (e.g., EVÜ, Rome I Regulation) and the UN Convention on Contracts for the International Sale of Goods (CISG).
5. Should any provisions of this contract be legally ineffective, invalid, and/or void, or become so during its term, this shall not affect the legal validity and effectiveness of the remaining provisions. In such a case, the contracting parties agree to replace the legally ineffective, invalid, and/or void (or having become ineffective, invalid, and/or void) provision with one that is legally effective and valid and, to the extent possible and legally permissible, corresponds in its economic effect to the replaced provision.
X. Final provisions
1. All legally binding declarations under this contract must be made in writing and sent to the last known address of the other contracting party.
2. The headings chosen for the individual chapters are for convenience only and shall not be used for the interpretation of this contract.
VELVETY on May 8, 2024